Lewis v. State

• Decision Date: 05 January 1968
• Docket Number: No. 41,41
• Parties: L. C. LEWIS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 678

2 Md.App. 678

237 A.2d 73

L. C. LEWIS v. STATE of Maryland.

No. 41.

Court of Special Appeals of Maryland.

Jan. 5, 1968.

Nelson R. Kerr, Jr., Towson, for appellant.

Francis B. Burch, Atty. Gen., Bernard L. Silbert, Asst. Atty. Gen., Baltimore, Samuel Green, State's Atty., for Baltimore County, John G. Hennegan, Asst. State's Atty., for Baltimore County, Towson, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.

MURPHY, Chief Judge.

The appellant, L. C. Lewis, was found guilty of armed robbery on December 21, 1966, by a jury in the Circuit Court for Baltimore County. He was sentenced to a term of not more than five years in the Maryland Correctional Institution for Men. He contends on this appeal from that judgment that the lower court erred (a) in admitting evidence seized without a search warrant, (b) in refusing to instruct the jury that it was the judge of the facts only and not of the law, (c) in refusing to instruct counsel not to argue questions of law to the jury and in refusing to give its instructions after argument of counsel, rather than before, and (d) in requiring defense counsel to renew objections before the jury when such objections to the introduction of real evidence had previously been over-ruled.

On December 21, 1965, at approximately 2:30 a.m., Stanley Zalenski was robbed of $454.00 in front of his home. After the robber had fled in a car, Zalenski called the Baltimore County Police, and Officer Wilmer Ewing was directed to the scene. Ewing received a description of the assailant from Zalenski which he broadcast on his police radio, as follows:

'The description of the subject wanted was a white male, twenty-three to twenty-five years of age, five foot nine to five foot ten inches, one hundred fifty to one hundred sixty pounds. He was wearing a dark topcoat.'

In the meantime, Officers McCumbie and Hauf, cruising in their radio car about three or four miles from the scene of the robbery, accosted two white men, later identified as the appellant and Donald Welton, parked illegally in a 1965 Mustang. This information, broadcast over the police radio, was overheard by Officer Ewing who recalled having seen a similar automobile approximately one block from the robbery scene about five or ten minutes prior to receiving the call to go to the Zalenski home. Ewing made inquiry over his radio as to the color of the Mustang, and upon being advised that it was light green, he requested that the two subjects be held, as he had cause to believe they were involved in the robbery.

After obtaining drivers' licenses from the occupants of the Mustang, Officer McCumbie radioed for a warrant check, and upon being erroneously advised that two traffic warrants were outstanding against the appellant, he arrested him and placed him in the police car.

As he was proceeding to the scene where the officers were holding the two suspects, Ewing learned that Welton was one of the men being held. Ewing then recalled that Welton was either related to, or had worked for, the management of Mike's Pizza Shop, with which Zalenski was associated, and he believed that Welton would be acquainted with Zalenski, and would be familiar with the operation of the business. When he arrived at the location of the Mustang, Ewing observed that the appellant fit the description of the robber given him by Zalenski. He thereupon arrested both Welton and the appellant on suspicion of armed robbery. As Welton was being taken from the Mustang to a police car, he passed by a trash container which the police immediately thereafter searched, finding therein a roll of money totalling $100.00. The roll was dry and warm, although it was then snowing. Officer Paul Milton then searched the Mustang wherein he found $3.00 in bills on the floor and a .25 caliber automatic pistol in a compartment under the dashboard. Officer Milton's search began promptly after the appellant and Welton had been arrested by Officer Ewing and as they were being driven away in police cars from the scene. The items discovered as a result of searching the Mustang were admitted in evidence at the trial as having been seized incident to appellant's arrest.

We find no merit in appellant's contention that the search of the Mustang automobile and seizure of the money and gun therefrom were illegal. We think the arrest of appellant by Officer Ewing was lawful as having been based upon probable cause to believe that a felony had been committee and that appellant had committed it. See Farrow v. State, 233 Md. 526, 197 A.2d 434; Lamot v. State, 2 Md.App. 378, 234 A.2d 615. It is, of course, well settled that where circumstances make an arrest without a warrant lawful, it is permissible, as an incident to the arrest, to search the person of the suspect and to take into custody and examine the tangible evidence or instruments of the crime, whether upon his person or within his present or immediate possession, Mulcahy v. State, 221 Md. 413, 423, 158 A.2d 80, including a motor vehicle which he occupies at the time of the arrest, Knotts v. State, 237 Md. 417, 207 A. 100; Michaels v. State, 2 Md.App. 424, 234 A.2d 772; Barton v. State, 2 Md.App. 52, 233 A.2d 330; Gaudio v. State, 1 Md.App. 455, 230 A.2d 700.

In reliance upon Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, appellant argues that the rule authorizing a warrantless search incident to a lawful arrest can only be justified on the basis of the need of the police to seize weapons and other things which might be used to assault an officer or effect an escape, as well as the need to prevent the destruction of evidence of the crime-things which might easily happen where the weapon or evidence is under the immediate control of the arrestee. Since he was in police custody and being transported to police headquarters at the time the search was begun, appellant contends that in no event could the search be deemed incident to his arrest. We think the appellant takes too parochial a view of the doctrine which allows contemporaneous searches incident to lawful arrests. Neither Preston nor any other decision of the Supreme Court has ever held that the need to discover hidden weapons and to prevent the destruction of evidence by an arrestee constitute exclusive reasons underlying and justifying the doctrine which permits warrantless searches incident to valid arrests. On the contrary, the reasons cited in Preston were not intended to be exhaustive. See Crawford v. Bannan, 336 F.2d 505 (6th Cir.); People v. Webb, 56 Cal.Rptr. 902, 424 P.2d 342 (Calif.); St. Clair v. State, 1 Md.App. 605, 232 A.2d 565 (Footnotes 3 and 4, at page 612). We think the relevant test of the validity of a search and seizure under the Fourth Amendment is whether, under the facts and circumstances of each case, the search was reasonable, Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730; and that which is reasonable cannot be determined by any fixed formula, United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, or stated in rigid and absolute terms, Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399.

Hence, in Crawford v. Bannan, supra, the United States Court of Appeals for the Sixth Circuit held that a search of the defendant's automobile at the scene of his arrest, made after he had been taken away in a patrol wagon, was valid. The court there recognized that under Preston the police, when making a lawful arrest, have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime; and that such right extends to things under the accused's immediate control and, to an extent depending on the circumstances of the case, to the place where he is arrested. The court there held that the search of Crawford's car, as incidental to and contemporaneous with his arrest, was 'otherwise reasonable' within the holding in United States v. Rabinowitz, supra, which, as the court indicated, was cited as authority in Preston. The court stated the basis of its holding 336 F.2d at page 507 as follows:

'* * * We do not consider that the fact that Crawford had left the scene when his automobile was searched prevented such search from being incidental to his arrest.'

Similarly, the Supreme Court of California, in People v. Webb, supra, held that the search of the defendant's car, both at the time of the arrest and thereafter, when the car had been impounded by police, was incident to the arrest, even though the defendant had been removed from the scene and was no longer in a position to use any hidden weapons or destroy evidence in the car.

In United States v. Doyle, 373 F.2d 875 (2nd Cir.) the search of the defendant's car, made in his presence after he had been arrested and handcuffed and taken into custody, was held valid as 'substantially contemporaneous with the arrest.' In United States v. Theriault, 268 F.Supp. 314 (W.D.Ark.) the search of defendant's truck outside the police station to which defendant had been taken after his arrest was held lawful as 'an uninterrupted and continuing action of the police initiated by the lawful arrest of the defendant.' 268 F.Supp. at 324. In Arwine v. Bannan, 346 F.2d 458 (6th Cir.) the defendant's car was searched in his presence at a police garage more than three hours after his arrest. The court stated its reasons for upholding the validity of the search on pages 470-471, as follows:

'We are of the view that the arrest and search, in this case, were units of an integrated incident, and, regardless of hairsplitting...